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Sandy:

What really has to be debated, in all seriousness, is whether the "Republican Form of Government" that some of you are counterposing to my advocacy of greater "democracy" boils down to some version of John C. Calhoun. There is nothing silly about Calhoun's theory. My friend (and fellow Balkinization contributor) Mark Graber often asserts the attractiveness of the Madisonian version of what political scientist Arend Lipjhart has called "consocialitionalism," i.e., the organization of the polity to make sure that it take more than a simple majority to rule. According to Lipjhart, this promotes a valuable spirit of "consensus" (similar to "bipartisanship"). Calhoun's is certainly the most worked-out version of such arguments in American history, though...

I cannot speak for the others, but I have been arguing that the founders intentionally designed our Republic to require a super majority consensus to enact changes and that this is a good thing which saves us from the mischief making of transient simple majorities.

I have some sympathy for the view that the wide discrepancies in state populations represented by our Senators goes beyond the necessities of super majority consensus toward fundamental unfairness.

In your imaginary constitutional convention, allow me to suggest a grand compromise where the Senate is reformed to more closely reflect the population in exchange for a new Article I provision requiring a 60% vote of each chamber of Congress to raise taxes or enter into new debt unless we are in a state of declared war.

This will put some teeth back into the declaration of war clause and stop transient majorities from bankrupting the country as appears to be the current case.
 

... a new Article I provision requiring a 60% vote of each chamber of Congress to raise taxes or enter into new debt...

Yes ... seeing as it worked so well for California, let's see if we can send the whole nation to the precipice.

This will put some teeth back into the declaration of war clause ...

What would put new teeth in the DoW clause is if Congress grew a backbone and impeached any preznit who ignored the Constitution and the laws that Congress duly passed....

Why a 60% vote for budgetary matters would affect that is truly beyond me, though. Particularly when certain preznits kept "wartime" expenses 'off the books'. And who threatened any Congresscritters that didn't fall into line with military budget demands with being branded "surrender monkeys" or even "traitors".

Cheers,
 

arne:

1) California apparently can muster a super majority for fiscal irresponsibility. I have more faith in America as a whole.

2) Under my modest proposal, it does not matter whether a President or a Congress keeps spending on or off the official budget because you need 60% of both chambers of Congress to raise taxes or borrow money to pay for any spending increase on or off budget.
 

First off, one point of me personally is that we live in a republic. It has checks on democratic rule. I doubt you disagree with all of them. So, "democratic" can be tossed around a bit too blithely. Ditto the 17A bit. A regular here gives that too much weight too imho.

Second, actually, I have read a bit of Lani Guinier and her "kids sharing" rule. It seems sensible to me actually.

Calhoun reeks of antebellum, and concern for a certain section. I don't think it really works as a fair application of what some call for today. I say this not as an expert of the guy, though I read some on the era in question.

But, all this concern of hyperpartisanship etc. IS what many today appear to like. Obama is said to be part of that. Some need for compromise etc. Some sort of minority veto, with limits, is inherent in that. Many also think this is important in respect of confirmation of judges.

The protection of minorities etc. is part of our message, including political minorities. A Sen. Byrd is well respected by many libs for some of his comments on executive power, but I guess his respect of the Senate is skipped over.
 

First off, one point of me personally is that we live in a republic. It has checks on democratic rule. I doubt you disagree with all of them. So, "democratic" can be tossed around a bit too blithely. Ditto the 17A bit. A regular here gives that too much weight too imho.

I resemble that remark.

I strongly believe in limitations on strict democracy. The difference I have on the issue of the filibuster is that I want those restrictions to have a solid foundation in either the theory of republican government or the practice. Some of those restrictions have a basis in the Constitution itself: 3 branches of government; presidential veto; two branches of the legislature; and some others. Others, like judicial review, are implicit in the structure of the government and can reasonably be argued to have been intended (see Federalist 78).

Ultimately, though, majority rule is a foundational principle of republican government. If there's going to be an exception to it, there needs to be some justification for it. I don't see that with the filibuster.

I freely admit that a good deal of my antipathy to the filibuster is that I grew up at a time when its principal (maybe only) use was by Southerners to prevent civil rights legislation and defend segregation. I can't see any reason to defend that practice.
 

But, the "theory" of the Senate, the anti-majoritarian aspects inherent in its function and so forth, soon included giving power to individual senators or blocs thereof akin to a filibuster in some form.

Judicial review was opposed by many in the Lochner Era. I don't think the civil rights context is as much of a trump as some think. Especially since many in the North etc. still had to go along. And, when a clear majority existed, the delay was relatively short in the long run.

How does a significant minority have interests protected outside of what can be struck down by judicial review? One person's veto is better in such cases?

If party politics skewered how the Senate was intended to work, e.g., having 45 senators filibuster to challenge it, I think that is the system working as intended more than the alternative.

This doesn't justify the filibuster as now practiced in all the particulars. But nor does mere majority rule across the board in both houses.
 

But, the "theory" of the Senate, the anti-majoritarian aspects inherent in its function and so forth, soon included giving power to individual senators or blocs thereof akin to a filibuster in some form.

I don't get this. The Senate before the Civil War allowed the South to block anti-slavery legislation, but I can't see that as a desireable example. I don't know of any other blocs.

I don't think the civil rights context is as much of a trump as some think. Especially since many in the North etc. still had to go along. And, when a clear majority existed, the delay was relatively short in the long run.

While it's true that many in the North were complicit, the South alone did have the power to block civil rights legislation. It did so for roughly 60 years, starting with anti-lynching legislation around 1905-10 (I'm going off memory) and ending with the Civil Rights Act. Thereafter, civil rights filibusters died out.

How does a significant minority have interests protected outside of what can be struck down by judicial review?

Most recognized rights are protected by the Constitution itself, either in the original document, the Bill of Rights, or the Civil War and other Amendments. To the extent rights have no textual support in the Constitution, enforcing them is problematic in any case.

As for minority interests (I'd hesitate to call them rights), the very structure of the government is designed to provide that protection. That was Madison's whole argument in Federalist 10; it's why legislation has to pass through the hoops of the House, Senate, President, and Court. Adding another hoop to those already created seems problematic to me.

If someone wants to make an exception to such a fundamental republican principle as majority rule, I think that exception should be grounded in one of the following:

1. Theory. I know of no such justification for the filibuster.

2. The general practice of other legislatures. There are lots of legislatures in the world, but I'm not aware of any which allow filibusters. When legislatures in the states depart from majority rule (as, say, CA does with its budget) the results are often disastrous.

3. Historical experience. The principle use of the filibuster in this country until the 1990s was to block civil rights legislation. That's not a promising justification.
 

We grow wheat in Iowa? Must be between the corn stalks.
 

I stand corrected re Iowa. I should have said "corn, wheat, and soy," the principal recipients of agribusiness subsidies.
 

No big deal, but ND's senator is Byron Dorgan (not Brian Dorgnan)
 

Mark and Sandy:

Would you favor a genuine, strict democratic system? I mean one in which all representative seats are based on population and all (non-rights violating) decisions are made by a simple majority? (Maybe something a bit more than 'simple'?)

I'm asking because I am quite torn about such a system. I certainly do not like the filibuster, but I have some worries about the real effects of a more genuinely majoritarian system.

Perhaps I don't trust my fellow citizens or those who typically gain office to represent us. It does seem to me that we often do not have legislation and policies that reflect majority views (viz., abortion rights), and I have the sense that this results from too much pandering to the constituents. In other words, I think the majoritarianism we have tends to be anti-majoritarian, thanks to voting habits, etc.

I have no idea if this makes sense.

Chris, now officially CTS.
 

"puts the lie to any easy notion that the United States is being honest with the rest of the world in pronouncing itself committed to the "democracy project.""

The marvel of our nation has been that we had a constitutionally limited form of government, which helped to keep our rulers from getting into too much mischief. It would be remarkable if said rulers were ever willing to admit that the thing that made us great was that they were in shackles.
 

Would you favor a genuine, strict democratic system? I mean one in which all representative seats are based on population and all (non-rights violating) decisions are made by a simple majority? (Maybe something a bit more than 'simple'?)

Once you make the system representative, you've departed from "direct" democracy (at least in the Athenian sense). Representation is itself a check on the flaws of "direct" democracy.

The basic answer to your question is yes, but I need to do some 'splainin. Of course I think the system should continue to be representative democracy rather than direct. I also favor a two chamber legislature (apportioned by population but chosen differently); a presidential veto (though I'd probably reduce the override to 60% in my Utopia); and judicial review. The Constitution contains other restrictions on democracy (indeed, ANY written constitution restricts pure democracy), and I support those as well.

So... subject to all those exceptions and guards, yes I support simple majority rule.
 

Would people object to a parliamentary house which was not apportioned by population, but by party percentage at the polls? I think this would be vastly more representative of the peoples' interests than overlapping geographically-based districts.

(course, while we're talking utopias, I'd actually replace the House with this parliamentary house, and leave the Senate as is, since the federal nature of our system requires State representation. but that's me. my second best would be to greatly expand the number of representatives, so the Districts are of smaller population. I simply think the country has way too many people now for such a small number of representatives to accurately represent the people. We haven't increased the size of the House since 1913. Our population has tripled since then.)
 

Clocking in at #9, Georgia is probably big enough to qualify as a "big state" with two Republican senators.
 

Just to clarify my last post a bit, I don't mean to endorse every single provision of the Constitution, particularly as currently interpreted. I just can't go through the whole document in a comment so I'm accepting it in general.

my second best would be to greatly expand the number of representatives, so the Districts are of smaller population. I simply think the country has way too many people now for such a small number of representatives to accurately represent the people. We haven't increased the size of the House since 1913. Our population has tripled since then.

I'm somewhat sympathetic to this, though in the long run it's a hopeless task. There's a line somewhere in which the size of the legislative body makes it unworkable. I don't pretend to know where to draw that line, though I assume the House of Commons would be at the upper end of the scale. Whatever we do, though, the rise in population will undo it faster than we can adjust.
 

Mark: Thanks. I really did not think you were in favor of Athenian style direct democracy. (Nightmarish, to a philosopher.)

I'm flu addled, so please bear with me. I guess I would be happy with a more genuine democracy if there were some way to make the reps really legislate according the majority views of the people. But, the only way I can see this working is by requiring the people to vote, which goes against another grain, and really getting the lobby money out of the pipeline.

I've also long been interested in the kind of parliamentary scheme Nerpzillicus mentions. Here, too, I have worries. I look at Israel and think they are in a worse mess than we are with our 2 parties and filibustering. But, I assume a parliamentary system might be less susceptible to the effects of gerrymandering of districts?

(Chris)
P.S. Is it me, or is that a pretty rough crowd over at Volokh?
 

As to Mark Field's latest reply to me personally:

(1) You support checks that are "implicit in the structure of the government" -- I think implicit in the Senate is some form of filibuster function. By design, it is anti-democratic, and simple majority would negate part of its reason for being. The filibuster grew early as an aspect of this.

(2) The South wanted things too. If the North acted to block such power, including by presidential action (e.g., desegregation of the armed forces ... filibustered?), it could have led to different results. But, simply put, the North didn't care enough and large parts were just as racist. When the N. did care enough, the South could not stop civil rights law.

(3) First, property rights (and some other areas) that now are left to the political processes were originally thought of as minority rights too by Madison et. al.

Second, yes, and the Senate was intended to be anti-majoritarian, and not just follow majoritarian party politics of today. This is the principle you don't see.

If a majority alone will decide things, the Senate loses a key aspect of it character. This includes the "historical" character you also cite. As Sen. Byrd says most famously, the power of the minority has been a force here.

A senator is concerned with a nominated judge that would serve his/her state. They historically were seen as particularly concerned about such people. If they had a problem, senatorial courtesy would justify delay or even refusal. This is what if not a sort of filibuster?

Filibuster power in all its forms simply is not just about civil rights legislation.
 

I assume a parliamentary system might be less susceptible to the effects of gerrymandering of districts?

I don't know how other countries apportion their legislatures. We do need to solve the gerrymandering problem because it undercuts the legitimacy of the whole system.

Is it me, or is that a pretty rough crowd over at Volokh?

Heh, it can be. OTOH, I've been practicing law for 30 years and I'm pretty used to people on the other side saying nasty things. I stopped letting it bother me and I try to respond to those worth responding to. One of the good aspects of the internet is that, unlike private conversation, you can simply ignore a comment.

I think implicit in the Senate is some form of filibuster function. By design, it is anti-democratic, and simple majority would negate part of its reason for being.

If you mean that the Senate is malapportioned, then I agree. Frankly, the filibuster bothers me a lot less as long as that persists.

However, if you mean more than that I disagree pretty strongly. The fact that we accept one departure from democracy doesn't mean we must accept others. At some point that logic would eliminate democracy entirely. As I noted above, we have a lot of restrictions on majority rule now; I don't think eliminating the least defensible will result in tyranny.

Nor do I see the Senate as counter-majoritarian in any other sense. The Founders clearly expected that the basic rule of operation in our government would be by majority rule. Here are some examples:

George Washington, Message to the Third Congress, November 19, 1794 (discussing the Whiskey Rebellion): “to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail.”

Thomas Jefferson, First Inaugural Address (March 4, 1801): “[I]t is proper you should understand what I deem the essential principles of our Government.... absolute acquiescence in the decisions of the majority, the vital principle of republics....”

In Federalist 58, James Madison responded to an anti-Federalist argument that the quorum in the House of Representatives ought to be more than a majority. In fact, this anti-Federalist argued, the Constitution should have required more than a majority for certain votes (IOW he wanted to Constitutionalize the filibuster). Madison rejected these arguments as leading to minority rule, a rule inconsistent with fundamental republican principle:

“It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”

Similarly, Alexander Hamilton criticized the Articles of Confederation (Federalist 22) precisely because they required more than a majority vote (2/3 in most cases, unanimity in some): “Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. … To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser. … The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater….”

Finally, Abraham Lincoln, facing the greatest challenge to the principle of majority rule ever seen in this country, a challenge which called into question the very ability of republican government to survive at all, echoed Madison when he pointed out the alternatives to majority rule in his First Inaugural:

“A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.”

As I said above, I need a good reason to place a limit on the principle of majority rule which (1) adds to those already existing; (2) has no textual support in the Constitution (and some textual opposition -- the tie breaker clause); (3) is followed by no other legislature in the world; (4) and has no historical support as essential to liberty (and a good deal of history as obstructive to liberty).

A senator is concerned with a nominated judge that would serve his/her state. They historically were seen as particularly concerned about such people. If they had a problem, senatorial courtesy would justify delay or even refusal. This is what if not a sort of filibuster?

I don't see that Senators have any more interest in this than House members do. The reason they can block an appointment is simple -- the advise and consent clause. But there's no greater intrinsic interest.

In any case, I oppose Senatorial "holds" too.
 

The problem with simple majority rule not subject to checks and balances is that a narrow majority soon learns that it can take the money of electoral minorities for itself and limit the liberties of minorities for its own benefit.

The benefit of requiring a supermajority consensus is that the electoral minority has more of a voice in the uses of government police power and the burdens of government are more likely to be avoided or spread more fairly.
 

Former VP "Dick Chency"? Surely you mean Dick Untracy?
 

Wow, when you try to act like an all-knowing intellectual, you might want to proofread - "Dick Chency"??? you liberal elitests always give me a good laugh